The Court of Appeals for the Armed Forces (CAAF) decided the appeal motion for United States v. Nieto recently. The case regarded a military investigator’s search authority and whether or not it could be based entirely on an investigator’s experience, specifically an investigator’s experience with how people generally use their portable electronic devices. The CAAF ruled that experience alone cannot constitute probable cause to seize and search physical evidence in a military criminal defense case, as it is essentially just a “hunch”, and reversed the appellant’s conditional guilty plea.


Specialist Nieto was apprehended by military police after being accused of using his cellphone to secretly record other military members using the latrine at Forward Operating Base Azizullah, Kandahar Province, Afghanistan. Army Criminal Investigation Division (Army CID) agents were given authorization to search and seize Nieto’s cellphone and laptop, despite his laptop never being mentioned in any allegations. The computer was collected because an agent claimed to have known that people were likely to store illicit photographs and “back those up on their laptops.” A second agent noted that “persons who view and record” acts for sexual gratification “often times store and catalogue their images and videos on larger storage devices” like a laptop.

Nieto entered a conditional guilty plea on multiple offenses, believing that the evidence against him was too difficult to overcome. He was unsuccessful in challenging the search authorities used to seize his laptop as lacking probable cause but maintained his right to appeal due to his plea. This appeal moved the case review up to the CAAF.

The CAAF determined that there was no probable cause to take the laptop in addition to the cellphone since it had not been mentioned in allegations. It upheld that more than intuition is necessary to establish probable cause in a military criminal investigation. In particular, the majority ruling said a “sufficient nexus” must exist between a crime and an item in order for it to be seized. The generalized profile used to assume Nieto had transferred data to his laptop was not enough to constitute sufficiency.

Judge Stucky of the CAAF did dissent from the ruling, however, believing it to be damaging to the overall notion and validity of probable cause. He also argues that the conclusion does not seem to comprehend, or at least acknowledge, the innate networked nature of today’s technology. Judge Stucky’s dissent suggests that similar future cases may need to deliberately establish a lack of probable cause, rather than just leaning directly on this ruling for referenced case law.

Military service members accused of criminal violations and facing court-martial can rely on Joseph L. Jordan, Attorney at Law. With years of military criminal defense experience and an unparalleled record of success, members of the Armed Forces – from the Air Force to the Navy – around the globe have chosen him consistently for high-profile and complicated cases. Contact his firm today if you would like to learn more about his professional legal services and how you can defend yourself from criminal accusations.